RED BANK – The developer looking to have an around-the-clock 7-Eleven convenience store on East Front Street has decided not to take the Planning Board’s no as the final answer.

Dina Enterprises, Inc., which had its application for the store denied by the board in May, filed a complaint earlier this month with the Superior Court in Freehold seeking to have the board’s decision overturned.

The complaint, drafted and submitted to the court by Red Bank lawyer Philip San Filippo, contends the board’s decision to reject the plan to conduct a 24-hour operation on the corner of Spring and East Front streets because of the proposed hours exceeds the board’s legal authority.

Dina Enterprises is asking for a judge to overturn the decision and to order the board to approve the plan, along with reimbursing the plaintiff for fees incurred for taking this step.

Dina Enterprises, Bay Avenue, Highlands, was seeking the board’s approval to convert an existing and aging Welsh Farms to a 7-Eleven, which would have included site upgrades. The sticking point for the board and for a considerable number of residents was the operating hours.

The developer and his professionals argued there was nothing explicitly stated in the initial 1975 zoning board of adjustment approval or in the zoning ordinance for the borough’s business-residential 1 zone that would prohibit the store from operating 24 hours a day.

Borough officials disputed those assertions, pointing out that during the initial application hearing more than 30 years ago, the developer noted the store, and what was then also a gas station, would be open from 7 a.m. to 11p.m. Welsh Farms currently stays open until 10 p.m.

The borough council in April adopted a new ordinance, intended to restrict noise, which prohibits any new businesses from operating from 11 p.m. to 6 a.m., if that business would be within 100 feet of a residential neighborhood. Borough officials contended at the time that the new ordinance was not in response to the 7-Eleven application.

The complaint alleges the ordinance led to the board’s vote, which constituted “commercial discrimination against Dina Enterprises” and an “inverse spot zoning.”

San Filippo’s court filing alleges the board’s actions “demonstrated a preoccupation with, and deference to, public opinion,” rather than the testimony the developer’s expert put forth. It also charges that the board ignored “the prevailing legal standards applicable to this permitted use.”